Howard Garrett of Orca Network tells the story of the infamous Penn Cove orca captures at the site where they occurred. Endangered Southern Resident Killer Whale Lolita/Tokitae, the last living survivor of the captures, has been held captive ever since in the Miami Seaquarium for the last 48 years. For more information, visit OrcaNetwork.org

There are those of us who have advocated in favor of Lolita's retirement and those who believe she is better off staying at the Miami Seaquarium but there appears to have been no significant middle ground to speak of.

The Miami Seaquarium provided no other alternative than for Lolita to weather the dangerous, fifth-largest Atlantic cyclone on record in her exposed, tiny tank under the extended threat of injury or death.

"She should have been moved, no questions asked," former SeaWorld trainer Dr. Jeffrey Ventre said, "It was criminal animal negligence or animal cruelty."

He said, "They could have put her on a stretcher, moved her to a truck, and then taken her to SeaWorld; It's a bunker compared to the Miami Seaquarium."

Dr. Ventre concluded, "Lolita staying in Virginia Key was the worst possible choice for her well-being during Irma."

Some have suggested that if she were ever moved to an alternate location like SeaWorld, Lolita would end up being stuck there instead.

However, allow me to play the role of Devil's Advocate for a moment and speculate how her health and welfare could be less threatened by an interim relocation to a facility like SeaWorld.

Compared to her tank at the Miami Seaquarium, Lolita should have:1. More room in which to move around,2. Freedom from being raked or otherwise harassed by dolphins,3. Shade from the Florida sun4. Freedom from polluted Biscayne Bay water and5. Potential orca companionship which she has not experienced in nearly four decades.

Facilities like those of SeaWorld appear to be more modern, less rundown and could provide safer refuge from deadly storms compared to those at the aging Miami Seaquarium.

If she were held there instead, SeaWorld would likely make the same hollow arguments that the Miami Seaquarium makes regarding the risk to her health posed by any relocation to a seapen.

However, those of us who have advocated for a proper, healthy retirement in the hurricane-free Salish Sea home waters in which her family still lives will continue so long as Lolita is held captive.

But until she can be returned to home waters, she should at least be housed in a safer, more accommodating facility than the antiquated Miami Seaquarium.

The new hurricane season is nearly upon us and the Miami Seaquarium has made it clear they will neither invest in any improvements to her substandard tank nor provide a contingency plan to ensure her safety from impending natural hazards.

Harsh criticism directed at the Miami Seaquarium has even been leveled by SeaWorld patrons and supporters who are not opposed to cetacean captivity.

There is a middle ground on which we can stand together and mutually care for Lolita's well being though we may disagree on what's best for her future after the next monster storm. Let's ensure she can survive any impending storm first and foremost.

This determination was only made because members of the public petitioned the government to do its damn job. As the government has not provided the protection for which Lolita was legally entitled, the government itself should be held liable.

It's pro-captivity comments are consistent with its stated mission of being "dedicated to protecting economic, property, and individual rights from the relentless expansion of government power." The public interest in Lolita's welfare is clearly not consistent with its stated mission.

The PLF suggests, "If members of a species in the wild disappear while regulated under the ESA at the same time that privately-owned members thrive without regulation, this wouldn’t be evidence that the privately owned members should be regulated. It would suggest, rather, that private ownership is superior to regulation."

The suggestion that privately-owned members would thrive without regulation demonstrates an ignorance in the overwhelming scientific evidence regarding the harmful and even fatal effects of captivity on such privately owned members.

To suggest that no regulation is superior to regulation is laughable. Had Washington State not restricted the capture of Southern Resident Killer Whales through its regulations, this endangered species would have likely become extinct years ago.

The PLF also suggests that, "When animals are privately owned, the owner has a financial incentive to ensure that they survive and propagate."

However, the financial incentive of private ownership is not rooted in the public trust doctrine or environmental stewardship; instead, it is the product of commercial exploitation, measured by ticket revenue generated at the gate.

If Lolita were no longer able to perform, whether through regulation or not, she would no longer generate sufficient revenue to feed this financial incentive. The propagation of a captive endangered species whose captive-born progeny would in turn be subsequently harmed by the act of captivity also feeds this financial incentive.

The PLF suggests that "Private ownership is an important means of preventing species extinction."

However, the on-going market demand for captive killer whales and dolphins, originally created by the likes of the Miami Seaquarium and SeaWorld, and the subsequent commercial exploitation of these animals through private ownership was a significant contributor to Southern Resident Killer Whales becoming endangered in the first place.

Petition to Include the Killer Whale Known as Lolita in the Endangered Species Act Listing of Southern Resident Killer Whales:

I support the proposed rule to grant Lolita equal protection by including her as a listed member of the endangered Southern Resident Killer Whale species and request consideration be given to science-based findings for her protection under the law, including relocation from the current “habitat” which further endangers her.

Lynne Barre, Seattle branch chief of NOAA’s Protected Resource Division, said that its determination does not empower the federal agency to make decisions about Lolita's ownership.

However, the question regarding whether Lolita is owned by Miami Seaquarium or held in the public trust is quite germane to this case.

NOAA is part of the Executive Branch that is vested with the police power of eminent domain, which could be employed to acquire Lolita from Miami Seaquarium with compensation, if she is considered private property.

NOAA has not only the power but also the responsibility to make such a relevant determination in order to evaluate the appropriate range of alternatives to protect the public interest in Lolita's welfare.

In Lolita’s case regulating agencies have failed to provide adequate protection of public trust resources. Trustees should be held responsible to their beneficiaries. Commercialization, through the captivity of privately-owned wildlife, can violate the public trust and further endanger wildlife itself.

Accountability for trustee actions, decisions, and policies have been sorely lacking in Lolita’s case. There has been little if any documented evaluation of the trustee’s performance in order for public beneficiaries to hold the trustee accountable.

Actions of the trustees should be transparent and clearly described to facilitate such an evaluation. Examples of accountability mechanisms include requirements for public participation, education and full disclosure of accomplishments and failures.

Ms. Barre said that NOAA’s official opinion is that Lolita may be afforded protections under the Endangered Species Act while remaining in captivity. However, Lolita should be afforded protection whether she is held captive or not.Ms. Barre stated that it was unclear whether Lolita’s protection under the act would prohibit her from performing. “It’s probably for our lawyers to figure out,” she said.

“Under the Endangered Species Act, we think release into the wild could be harmful to the mammal and to the wild population,” said Ms. Barre. What she failed to acknowledge is that further captivity itself could be as harmful if not more so.

The NOAA attorneys and staff must be informed by science. Whether or not Lolita continues to perform in captivity is not as important as the question: Does her continued captivity and confinement in a derelict, substandard tank further endanger Lolita?

There is abundant evidence from scientific research documenting the harmful effects of captivity. Whether she is considered private property or not, Lolita continues to be held in violation of the spirit of the public trust doctrine.There was no public purpose served by exempting Lolita from being listed as a Southern Resident Killer Whale under the Act in 2005.

Lolita’s well-being should have been ensured under the Act for the past nine years. Instead her legal rights to protection and the growing body of scientific evidence documenting the harmful effects of captivity have been effectively ignored.

The Endangered Species Act’s "take" prohibitions provide a legal precedent to protect Lolita. "Take" is defined in section 3 of the Act as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect" or to attempt to engage in any of these activities. However, the liability for a “take” is not limited to the entity directly responsible for the action.

Recent case law shows that entities which regulate conduct that results in harm to listed species can be held liable for such a “take.” Many of these cases have been decided pursuant to section 9(g) of the Act, which provides that "it is unlawful for any person subject to the jurisdiction of the United States to attempt to commit, solicit another to commit, or cause to be committed, any offense prohibited by the ESA.”

The Act forbids government agencies from participating in any action that may “jeopardize the continued existence” of any endangered species. There are also provisions for private citizens to take legal action against the government to make sure the Act is enforced.

As it has failed to provide meaningful protection against the harmful effects of captivity for which Lolita was legally entitled, the government should be held liable under provisions of its own Act.

If the government extends Lolita’s captivity, it will expose her to further stress and health risks. It will needlessly extend her exposure to intense, low-latitude solar radiation, mosquito-borne illness, acoustical harm, polluted Biscayne Bay water which feeds her derelict, substandard tank which offers no freedom of movement, and other on-going threats.﻿